By Ira W. Mintz, Esq.
The Commission has proposed amendments to its interim relief rules that, among other things, would allow the Commission Chair or designee to deny an application for interim relief if the Chair or designee believes that there is an insufficient basis in the pleadings to meet the standards for granting interim relief. The amendments would also permit the Chair or designee to issue an interim relief decision before the submission of a supporting brief, and eliminate the right to argue orally in person, or to argue orally at all. Comments on the rule proposal are due Friday, May 4. The Commission is required to post a notice of its rulemaking proposal on its web site, but it has not done so. The rule proposal can be found in the New Jersey Register at 44 N.J.R. 560(a).
By Ira W. Mintz, Esq.
Township of West Caldwell and West Essex PBA Local 81 (West Caldwell Unit)
In P.E.R.C. No. 2012-54, the Commission decided to consider the employer’s scope of negotiations petition even though it was filed outside the 14-day time frame required by Commission rules.
A scope petition can challenge the negotiability of an issue before an interest arbitrator. If a subject is not negotiable, the arbitrator cannot include it in a successor agreement. After the Legislature amended the interest arbitration statute to require that interest arbitration awards be issued within 45 days of the appointment of the arbitrator, the Commission posted an FAQ on its web site that suspended application of a Commission rule that prohibited the arbitrator from rendering a decision on any issue that was the subject of a scope of negotiations petition that had previously been filed with the Commission. The requirement that the arbitrator issue an award within 45 days of assignment precluded application of that rule. In its FAQ, the Commission announced that any scope of negotiations dispute would be decided by the Commission as part of any appeal to the Commission of an arbitration award. However, the FAQ did not suspend the requirement under a separate Commission rule that a scope petition be filed within 14 days of the filing of an initial interest arbitration petition.
In West Caldwell, the Commission held that where the language of its FAQ could have been more precise with regard to the “new procedures for the filing of a scope petition” as part of an interest arbitration appeal, it was “compelled” to consider the Township’s scope petition. However, there are no new procedures for the filing of a scope petition in an interest arbitration case. In August 2011, the Commission amended its scope of negotiations and those amendments specifically reference the longstanding requirement that a scope petition in an interest arbitration case be filed within 14 days of the filing of the initial interest arbitration petition. The Commission is also currently proposing amendments to its interest arbitration rules, but the Commission is not proposing to eliminate the requirement that a scope petition in an interest arbitration case be filed within 14 days of the filing of the interest arbitration petition. In West Caldwell, the employer did not file its scope petition within 14 days of the filing of the interest arbitration petition on January 23, 2012. The employer waited to file its scope petition until after the arbitrator issued his award on March 12, 2012, well outside the 14-day time limit. Yet the Commission will consider the untimely petition and allow the employer to argue that an out-of-title pay provision interferes with its managerial prerogative to set staffing levels and assign the number and type of officers to a particular shift.
Contrast this decision with a 2010 Commission decision that was just affirmed by the Appellate Division of the Superior Court. In the Matter of New Jersey Institute of Technology and FOP Lodge No. 93, P.E.R.C. No. 2011-16, 36 NJPER 322 (¶125 2010), aff’d App. Div. Dkt. No. A-6247-09T3 (4/23/12). In that case, the Commission denied the FOP’s appeal from a decision of the Director of Arbitration that had refused to process the FOP’s request to appoint an arbitrator from the Special Disciplinary Arbitration Panel. The request was due on December 28 but filed on December 31.
By Ira W. Mintz, Esq.
Borough of New Milford and PBA Local 83
In P.E.R.C. No. 2012-53, the Commission amended its interest arbitration review standard to include a requirement that the Commission determine whether the arbitrator established that the award not increase base salary by more than 2% per contract year or 6% in the aggregate for a three-year contract award.
By way of background, an amendment to the interest arbitration law governing police and fire negotiations that went into effect on January 1, 2011 provides that an arbitrator cannot render an award which, on an annual basis, increases base salary items by more than 2% of the aggregate amount expended by the public employer on base salary items for the members of the affected employee organization in the twelve months immediately preceding the expiration of the collective negotiation agreement subject to arbitration; however, the parties may agree, or the arbitrator may decide, to distribute the aggregate monetary value of the award over the term of the collective negotiation agreement in unequal annual percentages. Base salary is defined by the statute as the salary provided pursuant to a salary guide or table and any amount provided pursuant to a salary increment, including any amount provided for longevity or length of service, and any other item agreed to by the parties, or any other item that was included in the base salary as understood by the parties in the prior contract. Base salary does not include non-salary economic issues, pension and health and medical insurance costs.
The arbitrator in New Milford awarded a three-year contract effective January 1, 2012 through December 31, 2014 with a 1% salary increase effective July 1, 2012, 2% effective January 1, 2013, and 2.5% effective January 1, 2014. The Commission remanded the case to the arbitrator to explain which figures were taken into his accounting of base salary and the costs of each year of the award. What is significant about the Commission’s decision is that it ruled that in making these cap calculations, an arbitrator cannot pass along to the employees any savings the employer receives from retirements or any other legislation that may reduce the aggregate amount expended by the employer during the life of the new agreement.
By Ira W. Mintz, Esq.
Morris County Prosecutor’s Office and Morris County Prosecutor’s PBA Local 327
In I.R. No. 2012-15, a Commission designee denied an application for interim relief that sought to require the employer to pay automatic salary step increases after the expiration of the parties’ contract. Automatic step increases are part of the dynamic status quo and until recently, a Commission designee would order the payment of those increases after the expiration of a collective negotiations agreement. In this case, the parties’ January 1, 2007 through December 31, 2010 contract included this unusually explicit language governing the payment of step increases after contract expiration: “Each successive year following expiration of the contract the step system shall continue in full effect whether or not a successor agreement has been reached.” Prior to the expiration of that agreement, the parties entered into a one-year extension that provided for no salary increases and no step movement for that one year. The extension then provided that notwithstanding the absence of a succeeding contract extension or collective bargaining agreement, “the parties will abide by the terms and conditions of the January 1, 2007 through December 31, 2010 Collective Bargaining Agreement.” Despite this language resurrecting the terms of the 2007-2010 contract, which included language requiring the payment of step increases after the expiration of a contract, the Commission designee found that the language from the contract and the extension as to whether the step system is automatic is “ambiguous and not clear.” The designee then concluded that the PBA had not established a substantial likelihood of success on the merits, one of the conditions necessary to obtain interim relief.